Pallin & Deave (No 2)
[2024] FedCFamC1A 191
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pallin & Deave (No 2) [2024] FedCFamC1A 191
Appeal from: Deave & Pallin (No 3) [2024] FedCFamC2F 691 Appeal number(s): NAA 163 of 2024 File number(s): HBC 1339 of 2021 Judgment of: RIETHMULLER J Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where appellant argues Family Law Act amendments should apply to primary judge’s decision – Appellant argues applicability of the Convention on the Rights of the Child – No grounds of appeal established – Appeal dismissed – Application for leave to file cross-appeal out of time – Leave not granted – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC
Family Law Amendment Act 2023 (Cth) s 2, item 12 sch 2
United Nation’s Convention on the Rights of the Child (1989)
Cases cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Inwood & Brock [2024] FedCFamC1A 72
Kantor & Jeong [2021] FedCFamC1A 48
Keighley & Keighley [2023] FedCFamC1A 146
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 28 Date of hearing: 17 October 2024 Place: Parramatta Counsel for the Appellant: Litigant in person Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Submitting notice filed 1 August 2024 ORDERS
NAA 163 of 2024
HBC 1339 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PALLIN
Appellant
AND: MS DEAVE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The appellant have leave to rely upon his Further Amended Notice of Appeal and Amended Summary of Argument, both filed on 26 September 2024.
2.The respondent’s Application in an Appeal filed 30 September 2024 be dismissed.
3.Appeal NAA 163 of 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pallin & Deave has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The appellant has appealed against final parenting orders made by the primary judge on 31 May 2024. The respondent seeks leave to file a cross-appeal out of time.
BACKGROUND
The parties are the parents of a child, X who is now 11 years of age. The proceedings were brought by the respondent who found the existing shared care and shared parental responsibility arrangements intolerable for the reasons recounted in the judgment of the primary judge. The appellant required “regular breaks each hour to accommodate his major depression and anxiety, conditions which affected his memory” and was permitted to refer to an “aide memoire” during the hearing (at [29]). His concerns about the care of the child are also recounted at length in the primary judgment (at [31]).
After considering the evidence of the parties and the witnesses, her Honour turned to the primary considerations set out in s 60CC of the Family Law Act 1975 (Cth) (at [36]), addressing those matters at some length (at [52] to [53]). At [53], the primary judge addressed the various relevant factors in s 60CC(3) at [53(a)] to [53(m)] of the reasons. Having addressed the matters relevant to determining the best interests of the child, the primary judge then turned to a consideration of parental responsibility (at [54] to [62]) and then the orders for the child’s living arrangements at [63] to [68].
The primary judge made orders for the child to live with the parties on a week about basis, but for the respondent to have sole parental responsibility with respect to long term issues. Additional orders were made providing for special days, electronic communication and injunctions preventing the physical discipline of the child, denigration of the child or of the other parent or their family, and restricting communication between the parents.
APPELLANT’S GROUNDS OF APPEAL
I granted the appellant leave to rely upon his Further Amended Notice of Appeal and amended Summary of Argument, both filed on 26 September 2024.
Ground One
Ground 1 -The Orders do not adhere to the new requirements contained in Part 7 of the Family Law Act 1975, including new Section 60CC requirements and the need to comply with the United Nations Convention on the Rights of the Child (1989)
The appellant complains that the primary judge approached the determination of the parenting issues in accordance with the provisions of the Family Law Act as they were prior to 6 May 2024. The amendments to these provisions as a result of the Family Law Amendment Act 2023 (Cth) commenced on 6 May 2024 (see s 2). Where proceedings had been commenced prior to 6 May 2024, as occurred in this case, Item 12 of Schedule 1 of the Amendment Act provides:
The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:
(a) proceedings instituted on or after the day this item commences;
(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.
The final hearing in this matter commenced on 12 March 2024, before the date of the commencement of the amendments. As a result, the primary judge was correct to apply the law as it existed at the date that the trial commenced and not the current version of s 60CC of the Act. This argument under Ground One must therefore be dismissed.
The appellant also complains that the primary judge failed to “comply with” the United Nation’s Convention on the Rights of the Child (1989). The Convention had not been enacted into Australian law either before the amendments commenced or after the amendments commenced. At the highest, Part VII of the Act sets out that it is an object of the Act “to give effect to” the convention (s 60B(4) prior to 6 May 2024, and now s 60B(b)). As I set out in Inwood & Brock [2024] FedCFamC1A 72 at [13])
The Convention does not form part of the domestic law in Australia: the domestic law is that set out in the sections of the Family Law Act 1975 (Cth). Whilst one of the objects of Part VII of the Act (s 60B(4)) was to give effect to the Convention, the relevance of the Convention is limited as the Convention itself has not been enacted into local law. In Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [29], Gleeson CJ explained that “where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia's obligations.” As there was no ambiguity in the legislation that the primary judge was applying, which arose from the circumstances of this case, the Convention was not relevant to the determination of the matter.
Ground 1 must be dismissed.
Ground Two
Ground 2 - There are a large number of specific problems with the Orders, which need to be addressed through the development of new Orders.
As the Full Court said in Kantor & Jeong [2021] FedCFamC1A 48:
9. ...[An] appeal cannot be allowed to progress in the form of a general lament, for otherwise the [respondent] will suffer the prejudice of not knowing how to meet the appeal.
Similarly, in Keighley & Keighley [2023] FedCFamC1A 146 the Full Court said:
72. Grounds of appeal must not be impermissibly vague and general; they should be expressed as a “specific and concise statement of the point sought to be argued by the applicant”: Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]. Neither of these appellate principles were observed by the father in this appeal.
This ground does not set out any specific point that the appellant seeks to argue. The Summary of Argument the appellant filed set out many complaints, largely based upon events since the orders were made together with complaints concerning the workability of the orders that only arise as a result of his overly technical reading of the orders. For example, the appellant urges that a reading of Order 13(a), which provides restrains the parties from “[p]hysically abusing or disciplining the child”, would prevent any disciplining of the child. Clearly the order is intended to prevent physical discipline.
The appellant has a remedy: applying to vary the orders made on the basis that there have been significant changes in circumstances since the orders.
Ground 2 must be dismissed.
RESPONDENT’S PROPOSED CROSS-APPEAL
The respondent filed an Application in an Appeal on 30 September 2024 seeking an extension of time to file a cross-appeal.
The respondent’s proposed grounds for the cross-appeal are as follows:
1. THAT THE PRESIDING JUDGE MADE A DECISION THAT WAS WRONG, LEADING TO AN INJUSTICE
2. THAT THE PRESIDING JUDGE DID NOT CONSIDER ALL RELEVANT EVIDENCE TO MAKE THE DECISION
3. THAT THE PRESIDING JUDGE ACTED IN A WAY THAT WAS BIAS, MORE SPECIFICALLY THAT THE PRESIDING JUDGE ACTED IN A WAY THAT PRIORITIZED THE CHILD'S RIGHT TO HAVE A MEANINGFUL RELATIONSHIP WITH HIS FATHER OVER THE CHILD'S RIGHT TO BE SAFE AND PROTECTED FROM HARM
4. THAT THE PRESIDING JUDGE MADE A DECISION OR DECISIONS THAT LED TO A DENIAL OF NATURAL JUSTICE, SPECIFICALLY THE PRESIDING JUDGE MADE DECISIONS WHICH WERE UNFAIR TO THE CHILD IN THE SENSE THAT THEY FAILED TO PROTECT THE CHILD FROM HARM
The time for filing a cross-appeal expired 14 days after the Notice of Appeal was served. The respondent can be taken to have been served by the time she filed a Notice of Address for service on 12 August 2024. The application for leave to file a cross-appeal was not filed until 30 September 2024, some three weeks after the determination of the appellant’s application for the Court to fund a transcript (which application was actively opposed by the respondent).
In substance, the respondent seeks to cross-appeal because of events that have occurred since the time of the judgment which have led her to the view that the orders need to be varied.
The appellant filed a Response to an Application in an Appeal on 15 October 2024 seeking orders for the child to attend upon various medical practitioners. The Response is supported by an affidavit where the appellant sets out a number of changes that have occurred with respect to the child since the orders were made by the primary judge.
The grounds of the proposed cross-appeal are in general terms. Ground 1 is without merit for the same reason as Ground 2 of the appellant’s appeal.
Ground 2 of the proposed cross-appeal is without particulars, however to the extent that the respondent does not rely upon events since the orders, she argues that the primary judge failed to have regard to the child’s poor school attendance whilst in the care of the appellant. The evidence appears at paragraph 47 of the Affidavit of the Respondent filed 14 November 2023. However, there is no transcript and therefore it is unclear whether the historical attendance rates were an issue argued at trial. In any event, it is not necessary that a trial judge “mention every fact or argument relied on by the losing party as relevant to an issue”, see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at 132.
Ground 3, as explained in the respondent’s submissions, does not allege bias or apprehended bias as understood at law. The respondent complains that the primary judge placed too much weight upon the views of the child and the frequency of the appellant’s “periods of anger and emotional dysregulation”, not by pointing to error by the primary judge, but by relying upon the current alleged views and experiences of the child since judgment.
The respondent does not argue that Ground 4 arises from a failure to afford procedural fairness (despite the wording of the ground), complaining instead that the primary judge had erred in her Honour’s assessment of the likely impact of the father’s mental health on the child. No specific errors or paragraphs of the reasons are identified, rather the appellant relies upon events since the date of the judgment.
The only explanation for the delay in filing a cross-appeal is that, in substance, the issues raised by her relate to events since the date of the judgment. The matters do not demonstrate that the primary judge was in error at the time of the judgment, rather that (if proved) the circumstances have altered (or at least have developed in a way quite different to that expected by the primary judge). It is also significant that the issues raised by the respondent are in dispute and would require substantial evidence. Most significantly, the child has now been living with the respondent for the last month.
The respondent has a remedy: applying to vary the orders made on the basis that there have been significant changes in circumstances since the orders were made.
In the circumstances of this case I am not persuaded to grant the respondent leave to pursue a cross-appeal out of time.
CONCLUSIONS
In this matter the appeal must be dismissed. The application to file a cross-appeal out of time must also be dismissed.
Neither the appellant nor the respondent were represented and neither were successful. I am not persuaded to make any order as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 18 October 2024
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